Advocates in SCOTUS case on tort and sovereign immunity stick to their guns, frustrate Court's search for middle ground

For the Federalist Society SCOTUScast podcast series, I recorded a commentary on the U.S. Supreme Court oral argument in Thacker v. Tennessee Valley Authority, which occurred in January.  You can read more about Thacker, and see an excellent video the Federalist Society produced, via my January 18 blog entry.

The Tennessee River dips into northern Alabama, where the accident in

Thacker occurred. (Map by Shannon1, CC BY-SA 4.0).

Here is background on the case from the Federalist Society:

On January 14, 2019, the Supreme Court heard argument in Thacker v. Tennessee Valley Authority, a case involving a dispute over the “discretionary-function exception” to waivers of federal sovereign immunity.

In 2013, Anthony Szozda and Gary and Venida Thacker were participating in a fishing tournament on the Tennessee River. The Tennessee Valley Authority (TVA) had a crew near the river, trying to raise a downed power line that had partially fallen into the river instead of crossing over it. The crew attempted to lift the conductor out of the water concurrent with Szozda and the Thackers passing through the river at a high rate of speed. The conductor struck both Thacker and Szozda, causing serious injury to Thacker and killing Szozda. The Thackers sued TVA for negligence. The district court dismissed the Thackers’ complaint for lack of subject-matter jurisdiction. 

On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment.  Although the act creating the TVA waives sovereign immunity from tort suits, the Court held that the waiver does not apply where the TVA was engaged in governmental functions that were discretionary in nature. 

Applying a test derived from the Federal Tort Claims Act, the Court determined that the TVA’s challenged conduct fell within this “discretionary-function exception” here, and immunity therefore applied.

The Supreme Court granted the Thackers’ subsequent petition for certiorari to address whether the Eleventh Circuit erred in using a discretionary-function test derived from the Federal Tort Claims Act rather than the test set forth in Federal Housing Authority v. Burr, when testing the immunity of governmental “sue and be sued” entities (like the Tennessee Valley Authority) from the plaintiffs’ claims.

Counsel for Thacker and counsel for TVA stuck to their guns in the oral argument.  Thacker's position was to interpret the "may sue and be sued" language that governs the TVA and other New Deal authorities to be broadly permissive of tort suits, stopping only to preclude "grave interference" with the executive branch prerogative.  The TVA meanwhile insisted that it is entitled to a broad discretionary function immunity, like that which Congress built into the later enacted Federal Tort Claims Act.

Questions from the Court tried to pull both counselors toward the possible middle ground of a sovereign immunity for governmental functions and not for commercial functions.  But neither counsel was willing to bite.  That led to a lively oral argument.  Thacker's case seems the stronger, but it is unclear how the Court will get to either result.